Opinion
May 15, 1967
In this proceeding to discipline an attorney for professional misconduct, petitioner moves to modify in certain respects and, as so modified, to confirm the report of the Justice of the Supreme Court (rendered after a hearing) to whom this court had referred the proceeding. Respondent was admitted to the Bar by this court on November 8, 1933. The reporting Justice has found respondent guilty under four of the seven charges against him and not guilty of the remaining three. The modification which petitioner seeks is that further findings against respondent be added with respect to four of the charges. Insofar as these proposed further findings pertain to three of the charges which the Justice found sustained, we deny the requested modification; no charges corresponding to those proposed findings were contained in the petition upon which this proceeding is based and the proof adduced at the hearing would not support such findings. As to the remaining proposed further findings, they pertain to a charge which the Justice reported as unproved; we shall deal with this below. The charges which the Justice found sustained were: (1) Respondent commingled with his own funds an amount of money deposited with him as escrowee in a sale of property as to which he was attorney for a decedent's estate (after complaint against him to the petitioning Bar Association, he paid the amount owing to his client, $2,000); (2) Respondent failed to repay $500 he had received from a client to institute a legal proceeding, although he promised such repayment because he had not brought the proceeding; (3) Respondent commingled with his own funds $1,000 which he received in escrow as the down payment on a sale of his client's residence (he remitted $600 to the client after she complained to the Bar Association; and a question remains as to whether the $400 balance is owing to the client, but the report finds respondent guilty only of the commingling); and (4) Respondent neglected to record a real property deed for a client until months after he had had the deed drawn and executed and until after complaint had been made to the Bar Association. In our opinion, the evidence supports the findings that these charges were sustained and we confirm those findings. One of the charges which the reporting Justice found unsustained concerned respondent's handling of a decedent's estate. It is with respect to this that petitioner seeks findings against respondent. In our opinion, the evidence requires us to find that respondent was negligent in the handling of the estate in that he failed to pay a $60 appraiser's fee which he had agreed to pay out of his own fee and failed to file a transfer tax proceeding; and we so find. Petitioner's motion is granted in part and denied in part, as hereinabove indicated; and the report is confirmed except that it is disaffirmed with respect to the charge treated with in the paragraph hereof just above. In considering the nature and extent of the discipline to be imposed, we have taken cognizance of several factors in mitigation, including the apparent absence of fraudulent intent by respondent, the fact that he has served as a member of the Bar for 33 years and the fatal illness of his wife during the period in which the incidents in question took place. In our opinion, censure of respondent is the appropriate action to be taken. Accordingly, respondent is herewith censured for the conduct of which he has herein been found guilty. Christ, Acting P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.